Justice for Moussaoui

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IT ISN'T CLEAR to me that Zacarias Moussaoui deserves the death penalty. And it isn't clear to me that he doesn't.

On the one hand, the Al Qaeda conspirator admits he was involved in a savage plot to kill many innocent Americans; he knew about the attacks planned for Sept. 11, 2001, and lied when he was arrested so they could proceed unimpeded. On the other hand, the federal government failed to follow up the leads it already had about a possible terrorist hijacking; it is not at all clear that 9/11 would have been prevented had Moussaoui told the truth. In short, there are serious arguments to be made for and against putting Moussaoui to death. It will be for the jury to decide what justice requires.

Already, the jurors have spent more than a month hearing testimony in this case. Last week they deliberated for 16 hours before concluding unanimously that Moussaoui's crimes made him eligible for the death penalty.

Now, in the trial's second phase, they will have to consider whether the aggravating factors of those crimes, such as the cruel and terrifying nature of the victims' deaths, outweigh any mitigating factors, such as Moussaoui's apparent mental instability. The jurors will be spending most of the next two months listening to often-wrenching testimony from dozens of witnesses. Then will come more hours of deliberation as they attempt to reach a just verdict.

By that point, not many people will be better qualified to decide what "a just verdict" means in the context of United States v. Moussaoui than the 12 men and women who will have invested so much time and effort into absorbing the evidence, studying the witnesses, considering the arguments of the prosecution and defense, and applying the law as instructed by the judge. Under the American system of due process, the verdict they reach (while subject to appeal) is presumed to be the right one. If the jurors all agree that Moussaoui should be executed, their agreement will signify that for this particular defendant, in these particular circumstances, the death penalty was what justice required.

Those who call for abolishing capital punishment, therefore, are really calling for reducing the options available to juries to do justice. Less justice can hardly be in society's best interest.

Nonetheless, opponents of capital punishment argue that putting Moussaoui to death would amount to nothing more than blind vengeance.

"Revenge . . . is sweet," writes Nicholas Coates, an editor at Gulf News; it "is what Americans want more than anything else." Washington Post columnist Richard Cohen labels Moussaoui's trial "a laborious procedure to carry out what most of us recognize is nothing more than revenge. Call it justice if you will, we all know what it really is." Elizabeth Hayden, whose husband was among the murdered passengers on United 175, argues that the death penalty is "pure vengeance," the sign of a nation "acting out of fear and hatred."

But if the death penalty is revenge, so is life imprisonment. How can it be "pure vengeance" to execute a man, but not to lock him behind bars for the rest of his life? Especially if, as some death penalty critics claim to believe, life in prison is actually worse than death? A dictionary definition of vengeance is "infliction of punishment in return for a wrong committed." By that standard, every punitive sanction from a parking ticket on up is a form of revenge. Eliminate the element of retribution from the penal code, and a lot of prison cells would stand empty.

Defendants in death penalty cases are no more threatened by runaway emotionalism and rage than any other criminal defendants. Like every accused criminal, they are shielded by due-process provisions that are specifically designed to take revenge and hatred out of the legal process. Indeed, death-penalty cases are characterized by "super due process," from the fine-tooth screening of potential jurors to the mandatory consideration of mitigating factors to the years of appeals that typically follow any death sentence. The judge in Moussaoui's case suppressed a very large chunk of the prosecution's case when a government lawyer was found to have improperly contacted witnesses. Was that the act of a criminal-justice system acting out of fear and hatred, hellbent on putting Moussaoui to death?

Of course not. It was just another illustration of the gulf that yawns between Al Qaeda's values and ours. Those the terrorists put to death are always innocent, always denied due process, always the victims hatred and revenge. But Moussaoui will not be executed -- if he is executed -- without first being given a fair trial, an unbiased jury, and the right to appeal. There was no justice for the victims of 9/11. For Zacarias Moussaoui, there will be.